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Scott Goldman v. Gerelda Severe

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


June 14, 2011

SCOTT GOLDMAN,
APPELLANT,
v.
GERELDA SEVERE,
RESPONDENT.

Appeal from a judgment of the Justice Court of the Town of Ramapo, Rockland County (Samuel Colman, J. ), entered November 7, 2007. The judgment, after a non-jury trial, dismissed the action.

Goldman v Severe

Decided on June 14, 2011

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: NICOLAI, P.J., LaCAVA and IANNACCI, JJ

ORDERED that the judgment is affirmed, without costs.

Plaintiff commenced this small claims action against defendant, his next door neighbor, to recover for property damage which resulted when a storm caused the neighbor's tree to fall into his yard and damage his chain link fence. At a non-jury trial, plaintiff offered photographs taken immediately after the incident to support his position that the fallen tree had been in a deteriorated condition prior to that time. Defendant contended that plaintiff had not shown that a dangerous condition existed or that defendant had had notice of such a condition. The Justice Court, after trial, dismissed the action.

Our review is limited to determining whether substantial justice was done between the parties "according to the rules and principles of substantive law" (UJCA 1807). Given this limited scope of review, the appellate court should not reverse a small claims judgment absent a showing that there is no support in the record for the trial court's conclusions, or that the trial court's determination is otherwise so clearly erroneous as to deny substantial justice (see Forte v Bielecki, 118 AD2d 620 [1986]).

Where a decayed or otherwise unsound or dangerous tree falls and causes damage on adjacent premises, the owner of the damaged premises must show that the tree owner had either actual knowledge of the defective nature of the tree or constructive notice of the dangerous condition, in order for the tree owner to be liable for negligence (see Ivancic v Olmstead, 66 NY2d 349 [1985]). In the instant case, plaintiff did not provide sufficient evidence from which it could be concluded that defendant knew of any defective condition of the tree or should have been on notice of any defective condition of the tree. The photographs offered by plaintiff to show the alleged deteriorated condition of the tree did not adequately demonstrate such deterioration and, in the absence of any expert testimony to support plaintiff's position, there is no basis in the record for a finding of liability on defendant's part. Accordingly, since "substantial justice has . . . been done between the parties according to the rules and principles of substantive law" (UJCA 1807), the judgment is affirmed.

Nicolai, P.J., LaCava and Iannacci, JJ., concur. Decision

Date: June 14, 2011

20110614

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